Summarised and Anonymised Opinion

Factual and Procedural Background

On 1 June 2023 at The Court the appellant pleaded guilty to four offences: two counts of attempting to engage in sexual communication with a child (counts 1 and 3) and two counts of attempting to meet a girl under 16 years of age following grooming (counts 2 and 4). On 28 July 2023 the appellant was sentenced on count 4 to an extended sentence of 9 years (a 4-year custodial element with a 5-year extended licence). Concurrent determinate sentences were imposed on counts 1–3 (terms of 8 months, 28 months and 11 months respectively). The usual ancillary orders were made.

The appellant was born male and identifies as female. She renewed an application for an extension of time (211 days) to apply for leave to appeal against conviction (previously refused by the Single Judge) and sought an extension of time (154 days) for leave to appeal sentence (the latter referred to the Full Court by the Single Judge).

The offending arose from contact with two online decoy profiles established by volunteer child protection groups (referred to here as Company A and Company B). On 7 May 2022 a Facebook account in the appellant's name messaged a decoy account (Decoy A) representing a 13-year-old. Messages exchanged between 7–14 May 2022 (count 1) included sexual propositions, requests for sexual photographs, sexualised instructions regarding clothing and references to sexual activity. On 14 May 2022 the appellant was arrested attempting to meet Decoy A (count 2); she was interviewed with an appropriate adult and answered "No comment".

On 30 November 2022 a different profile ("Ariana") messaged a decoy account (Decoy B) representing a 14-year-old; that profile was linked to the appellant by a business address and a YouTube video where the profile name corresponded to the appellant's name. Messages exchanged between 30 November and 10 December 2022 (count 3) included sexual propositions, requests for images and solicitations to meet in school uniform. On 10 September 2022 the appellant was arrested attempting to meet Decoy B (count 4) and was found in possession of handcuffs and a self-defence spray.

At sentence the appellant was aged 30 and had no previous convictions. A pre-sentence report and a psychiatric report prepared by Attorney Lyall (dated 20 March 2023) were before the sentencing judge. The reports recorded a background of foster care, long-term support from a Community Learning Disability team, a diagnosis of autism and a low IQ from a prior assessment. Attorney Lyall diagnosed a mild to moderate learning disability and an autism spectrum disorder, noted depression and anxiety, and observed that fantasy played a central role in the appellant's presentation. The reports assessed the appellant as posing a high risk of reoffending in similar sexual offences and as vulnerable in custody.

Legal Issues Presented

1. Whether to grant an extension of time (211 days) and leave to appeal against conviction (following refusal by the Single Judge).
2. Whether to grant an extension of time (154 days) and leave to appeal against sentence.
3. Whether the original sentencing judge correctly applied sentencing guidelines (including the offence-specific guidelines, the Mental Disorders Guideline and the Totality Guideline) and whether an extended sentence was properly available.
4. If sentencing error existed, what determinate sentence should replace the extended sentence imposed on count 4.

Arguments of the Parties

Appellant's Arguments

• The appellant said she was coerced first by paedophile hunters (the volunteer decoy groups) and then by her solicitors into pleading guilty.
• She asserted that the evidence against her was false and that there were no "real" children involved, arguing this undermined the criminality of her conduct.
• She claimed vulnerability due to learning difficulties and autism such that she did not understand right from wrong and that the conviction is therefore unsafe.
• She criticised the police and the prosecution for relying on evidence from the volunteer decoy groups.
• She explained the delay in pursuing an appeal by lack of assistance from her solicitors and late awareness of the appeal process after applying to the Criminal Cases Review Commission.

Attorney Witcher's (Appellant's Counsel on Sentence) Arguments

• The custodial sentence of 4 years (leading to a 9-year extended sentence) exceeded the appropriate starting point for a category 1 offence despite the judge finding the offending to fall within category 2.
• Extensive personal mitigation (neurodiversity, learning disability, background, good character) significantly reduced culpability and should have produced a notional sentence below 4 years; an extended sentence would then not have been available.
• The judge was not adequately addressed on the Sentencing Council's guidance for offenders with mental disorders, developmental disorders or neurological impairments and wrongly commenced by treating dangerousness as the determinative first step rather than first identifying the appropriate determinate sentence.
• There should have been a substantial downward adjustment from the category starting point to reflect the appellant's mental health and its connection to the offending.

Attorney Elliott's (Prosecution) Arguments

• The sentencing judge properly reduced culpability and accounted for mitigation (including mental health) and the overall sentence was just and proportionate to the offending.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

Application for extension of time and leave to appeal conviction

The Single Judge had refused the extension of time and leave to appeal conviction. The Single Judge's reasons were summarised and accepted by the Full Court: the grounds advanced lacked merit because there was no arguable entrapment, no basis to assert fabricated evidence, and it was clear the appellant had been fit to plead and understood her actions were wrong. The Single Judge had accepted the advice given by the appellant's advocate at the time and that the decision to plead guilty lay with the appellant. The Full Court agreed that the decoy nature of the recipient was relevant to sentence but did not undermine the criminality of contacting and attempting to meet an underage person for sex. Because the grounds lacked merit, the Full Court refused the extension of time for the conviction appeal and dismissed the appeal against conviction.

Appeal against sentence

The Full Court granted the extension of time and leave to appeal against sentence and proceeded to hear the appeal. The court analysed the sentencing judge's approach and application of the relevant Sentencing Council guidelines. The Court noted four relevant guidelines: (i) the offence-specific guideline for meeting a child after grooming; (ii) the offence-specific guideline for sexual communication with a child; (iii) the guideline on sentencing offenders with mental disorders, developmental disorders or neurological impairments (the Mental Disorders Guideline); and (iv) the Totality Guideline.

The court identified an error in the judge's sentencing approach: the judge appeared to begin from a premise that an extended sentence was required because of perceived future danger rather than first determining the just and proportionate determinate sentence under the offence-specific guideline and then deciding whether an extended sentence was available. An extended sentence is only available if the appropriate determinate sentence is 4 years or more.

The court examined how the Mental Disorders Guideline should have been applied. The guideline requires sentencers to assess culpability under the offence-specific guideline and then consider whether culpability should be reduced by reason of an impairment or disorder where there is a sufficient connection between the disorder and the offending. The sentencing judge had correctly concluded that the appellant's autism and learning difficulties reduced culpability, but had not stated the extent of any reduction or applied that reduction clearly within step 1 of the offence-specific assessment. Instead, the judge treated the difficulties more as a mitigating factor overall rather than as directly reducing culpability at the relevant stage.

The Full Court undertook the exercise required by the guidelines and concluded that the appellant's culpability would not have been reduced into a lower category but would have fallen towards the lower end of category 2. The Court reasoned that:

• Counts 1 and 3 (the communication offences) formed the grooming element of counts 2 and 4 (the attempts to meet) and therefore could not meaningfully add to the criminality of the arranging-to-meet offences.
• The absence of real children was a mitigating factor properly reflected in sentence but only to a measured extent given persistent attempts to arrange meetings.
• Certain aggravating features identified by the sentencing judge—such as presenting a false persona as a caring professional and a significant age difference—were either already accounted for in the category placement or were inherent in the offending type and therefore did not justify substantial additional uplift.
• Material mitigation included previous good character, an impoverished background, extreme vulnerability in custody, neurodiversity and learning disability, and the central role played by fantasy and impaired understanding as reported by Attorney Lyall.

Balancing aggravating and mitigating factors with the reduced level of culpability, the Full Court assessed that:

• Counts 1 and 3 could not justify more than 18 months after trial.
• Counts 2 and 4, with additional aggravating features (offending while under investigation; carrying handcuffs), could justify no more than 2½ years after trial.
• If sentences for the two sets of offences were made consecutive without further totality reduction, the aggregate notional sentence after trial would be no more than 4 years. Applying the 20% reduction for the guilty plea brought the appropriate custodial term to 3 years and 2 months.

Because that determinate term (3 years 2 months) is below the 4-year threshold required for an extended sentence, the Full Court concluded that an extended sentence was not properly available. The court therefore allowed the appeal against sentence, quashed the extended sentence imposed on count 4 and substituted a determinate custodial sentence.

Holding and Implications

HOLDING:

• The Full Court refused the appellant's application for an extension of time and leave to appeal against conviction and dismissed the appeal against conviction.
• The Full Court granted the extension of time and leave to appeal against sentence, allowed the appeal against sentence, quashed the extended sentence of 9 years imposed on count 4 and replaced it with a determinate sentence of 3 years and 2 months. All other sentences and orders remain unchanged.

Implications:

The immediate effect is to reduce the custodial element on count 4 from 4 years (as part of a 9-year extended sentence) to a determinate sentence of 3 years and 2 months; ancillary orders and other determinate sentences remain as imposed. The decision rests on the court's application of the Sentencing Council guidelines—in particular the requirement to assess culpability with careful regard to any mental disorder or impairment at step 1—and the principle that an extended sentence is only available where the appropriate determinate sentence reaches the statutory threshold. The opinion does not purport to establish a novel legal precedent beyond clarifying the proper sequencing and application of the guidelines to the facts of this case.